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C vs Mr.kersi Gustad Sethna on 28 January, 2011

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  Bombay High CourtBombay High CourtC vs Mr.Kersi Gustad Sethna on 28 January, 2011Bench: R. S. Dalvi1 NM-8 PGKIN THE HIGH COURT OF JUDICATURE AT BOMBAY rtO.O.C.J.ouNotice of Motion No.8 of 2010INSuit No.16 of 2008CMrs.Havovi Kersi Sethna ... ... Plaintiff v/s.Mr.Kersi Gustad Sethna ... ... Defendant hMr.Narayan Suvarna i/by Mrs.Ansuya Dutt for Plaintiff. igMs.Taubon F. Irani for Defendant. -----HCORAM : SMT.ROSHAN DALVI, J.Date of reserving the order : 14th January 2011 yDate of pronouncing the order : 28th January 2011 baORDER :1.Parties are wife and husband. The Petition for divorce ombetween the parties and other ancillary reliefs is pending trial. The wife, who is the Petitioner, is undercross-examination. The husband relies upon certain handwritten diaries of the wife as well as BCompact Disk (CD) on which conversation between the wife and the husband has been recorded by thehusband on certain dates. The husband has produced the transcript of the said conversation. The husband has::: Downloaded on - 09/06/2013 16:48:07 ::: 2 NM-8 applied for verification of the handwriting of his wife inthe diaries and the voice of the wife in the taped rtconversation on the CDs. The wife admits the handwriting in her diaries. That can be produced in ouevidence. Hence the husband does not press the relief in that behalf. Aside from the diary, there is one C C vs Mr.Kersi Gustad Sethna on 28 January, 2011Indian Kanoon - http://indiankanoon.org/doc/391935/1  line written by the wife on a certain menu of her catering service which is also admitted by the wife. h2.The parties are at dispute with regard to the taped conversation on the CDs. The husband has not yet filed ighis affidavit of documents. He has, therefore, not relied upon any specific document. The husband has, Hhowever, served upon the wife inter alia the CDs as well as the transcript. These are the documents yreferred to by the husband in paragraph 22 of his written statement. The reference runs thus: baOn several occasions thereafter the Defendant omhad occasion to record the Plaintiff's conversation where she has told the Defendant to leave her father shouse, as she wanted a divorce.BIt is contended on behalf of the wife that the taped conversation is not relied upon as a document. It is notreferred to as a document and hence the husband ::: Downloaded on - 09/06/2013 16:48:07 ::: 3 NM-8 cannotuse it as a document in evidence. It is also contended by the wife that the affidavit of documents rtis not filed and the instrument on which the initial conversation was recorded is not produced. The husband oucould have recorded it on a tape recorder, audio cassette, MP-3 player, Dictaphone, computer or even on Chis mobile phone. That recording is not produced and inspection of that recording is not given and hence thewife contends that the CD and the transcript cannot be hused by the husband.3.The wife hasigneither admitted nor denied the conversation. The husband seeks to use it in her cross- Hexamination.y4.The elementary principle of recording evidence must be first considered. Evidence consists of¬†examination-in- bachief and cross-examination. A party is required to offer for inspection and produce the documents relied omupon by him in support of his case. This is required in his examination-in-chief. This contains the oral anddocumentary evidence.B5.Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and OrderVIII Rule 1-A of the CPC with regard to the documents of the Defendant. The aforesaid orders and rules run C vs Mr.Kersi Gustad Sethna on 28 January, 2011Indian Kanoon - http://indiankanoon.org/doc/391935/2  ::: Downloaded on - 09/06/2013 16:48:07 ::: 4 NM-8 thus:rt14. Production of document on which plaintiff sues or relies. (1) Where a plaintiff sues upon oua document or relies upon document in his possession or power in support of his claim, he Cshall enter such documents in a list, and shall produce it in Court when the plaint is presented by him andshall, at the same time deliver the hdocument and a copy thereof, to be filed with the plaint. ig(2) Where any such document is not in the Hpossession or power of the plaintiff, he shall, where possible, state in whose ypossession or power it is.ba(3) A document which ought to be produced in Court by the plaintiff when the plaint is ompresented, or to be entered in the list to be added or annexed to the plaint but is not produced or enteredaccordingly, shall not, without the leave of the Court, be received in Bevidence on his behalf at the hearing of the suit.(4) Nothing in this rule shall apply to ::: Downloaded on - 09/06/2013 16:48:07 ::: 5 NM-8 documentproduced for the cross-examination of the plaintiff s witnesses, or handed over to a rtwitness merely to refresh his memory. ou1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by Chim.- (1)Where the defendant bases his defence upon a document or relies upon any document in hispossession or power, in support of his hdefence or claim for set-off or counter-claim, he shall enter such document in a list, and igshall produce it in Court when the written statement is presented by him and shall, at Hthe same time, deliver the document and a copy thereof, to be filed with the written ystatement.ba(2) Where any such document is not in the possession or power of the defendant, he omshall, wherever possible, state in whose possession or power it is. C vs Mr.Kersi Gustad Sethna on 28 January, 2011Indian Kanoon - http://indiankanoon.org/doc/391935/3  (3) A document which ought to be produced in BCourt by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, bereceived in evidence on his behalf at the hearing of the suit. ::: Downloaded on - 09/06/2013 16:48:07 ::: 6NM-8 (4) Nothing in this rule shall apply to rtdocuments-(a) produced for the cross-examination of the ouplaintiff s witnesses, or(b) handed over to a witness merely to refresh Chis memory.Besides this, Order XIII deals inter alia with the hproduction of documents. This relates to production by both the parties, theig Plaintiff and the Defendant. Under Order XIII Rule 1 of the CPC, the srcinal documents are required to beproduced by the parties Hand received by the Court. Order XIII Rule 1 runs thus: y1. Original documents to be produced at or before the settlement of issues.-(1) The baparties or their pleader shall produce on or before the settlement of issues, all the omdocumentary evidence in srcinal where the copies thereof have been filed alongwith plaint or writtenstatement.B(2) The Court shall receive the documents so produced:Provided that they are accompanied by an ::: Downloaded on - 09/06/2013 16:48:07 ::: 7 NM-8 accurate listwhereof prepared in such form as the High Court directs.rt(3) Nothing in sub-rule (1) shall apply to oudocuments-C(a) produced for the cross-examination of the witnesses of the other party; or h(b) handed over to a witness merely to refresh his memory.ig C vs Mr.Kersi Gustad Sethna on 28 January, 2011Indian Kanoon - http://indiankanoon.org/doc/391935/4

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Jul 23, 2017
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